“Human rights and rule of law conditions in China overall did not improve this past year, and declined in some of the areas covered by this report.” And so begins the Congressional-Executive Commission on China‘s (CECC) 2014 Annual Report, a non-sugarcoated analysis of the dilapidated state of human rights and rule of law in China these days.
Required by regulation, the CECC publishes an annual report analyzing these issues and this year’s report demonstrates that President Xi Jinping continues to consolidate his power through political purges and other methods not seen since the end of the Cultural Revolution. But, as the this year’s report shows, the periphery – both from a geographic as well as a societal perspective – continues to buck the central government’s control and as a result, continues to experience a harsh crackdown.
The Chinese government’s reaction to the Hong Kong protests earlier this month – calling the peaceful protesters “extreme” and threatening “unimaginable consequences” – pale in comparison to its suppression of any attempts in Tibet or Xinjiang to give life to the term “autonomous” in the title Autonomous Region which both nominally are. In the past year alone, of the 141 Chinese political prisoners that China has arrested or detained (see CECC list here), 101 are Tibetan or Uigher (the ethnic group that populates Xinjiang province in western China).
The recent sentencing of Uigher professor, Ilham Tohti, reflects the Chinese government’s inability to comprehend a notion of autonomy that
Ilham Tohto and his wife before he was sentenced to life imprisonment
could mean anything other than complete tethering of the region to the Chinese Communist Party and its policies. Tohti was not a Uigher radical and never called for separatism from China in contrast to the charges against him. Rather, his writings questioned the efficacy of the government’s harsh policies like forbidding traditional Muslim practices of fasting for Ramadan, wearing of head scarves, or even public prayer. Tohti called for the Uighers to have more of a say in the governing of their daily lives, breathing life into the term autonomous, much like the students protested for last week in Hong Kong. But instead of listening to Tohti that greater independence in these ostensibly autonomous regions could lead to great stability, a Chinese court sentence Tohti to life imprisonment.
But, as the CECC’s Annual Report illustrates, controlling the periphery increasingly means controlling entities ostensibly outside of its borders. The Chinese government’s continued use of the journalist visa process in an attempt to censor foreign coverage of China is one such example. The other, is the lopsided use of its laws to benefit domestic businesses over foreign ones, in particular the anti-monopoly law. As Sophie Richardson, Human Rights Watch’s China Director points out, rule of law issues in China are no longer a fringe human rights issue; instead, the same arbitrary legal system that puts dissidents in jail for life is now beginning to negatively impact foreign business interests in China. But will this Annual Report will be the wake-up call to business and the U.S. government that it needs to actually start considering attention these issues? That it needs to actually read the CECC’s Annual Report, not just mandate that it be created?
With the hoopla surrounding actor Huang Haibo’s six month sentence under China’s Custody & Education (“C&E”) system – an administrative punishment outside of the court system – on June 9, 2014, Beijing News ran an article examining that system. Included with the article was a telling diagram that highlighted the lack of a legal basis for C&E. The article effectively called for the repeal of C&E.
For an explanation of C&E and the current debate, see China Law & Policy’s previous post here.
That article is no longer available on the Beijing News website. However, it can still be found here. Additionally, below, China Law & Policy translates the portion of the article that was an interview with Tian Wenchang (pronounced Tea-en When-chang), one of China’s most famous attorneys and the current director of the Criminal Law Committee of the All-China Lawyers’ Association. In the short interview, Tian persuasively argues for C&E’s abolishment.
Beijing News [BJN]: As one of the people pushing [for reform], why do you want think to do this?
Tian Wenchang [TWC] (Director of the Criminal Law Committee of the All-China Lawyers’ Association): The fact is that after Reeducation through Labor (“RTL”) was abolished, people forgot about Custody & Education (C&E). But because a case relating to C&E recently emerged, society is once again examining C&E, questioning whether it is legitimate and whether it should still exist.
BJN: What do you consider to be the biggest problem with C&E?
TWC: The biggest problem is with C&E is the same as with RTL: administrative agencies can deprive individuals their liberty without due process, so lots of problems appear in implementing it.
BJN: What kinds of problems?
TWC: For example, for sex workers and their clients, after undergoing an administrative punishment [under the Public Security Administrative Punishment law], public security bureaus are able to decide on their own whether the individual should also receive a C&E sentence. There are no specific standards to guide this decision. For example, six months to two years of custody, how is this term determined; it’s very possible that there are variations in the implementation. Without due process and public transparency, it’s easy for there to be a hidden agenda.
BJN: Six months to two years, is that too heavy a punishment for prostitution and solicitation?
TWC: Under the Public Security Administrative Punishment Law, [the police] are able to keep someone in custody for 15 days for a prostitution-related offense. But under C&E, the maximum sentence may be up to two years. This is often more severe than the punishment under the criminal law. Whether this [disparity] is fair or not is pending discussion.
Repealing C&E Will Likely Take A Long Time
BJN: Based on your observation, do local public security bureaus often use C&E as a form of punishment?
TWC: My understanding is that in the overwhelming majority of provinces in the country, C&E is not used very often. But this does not mean that the public security bureaus do not have the right [to use C&E]. So long as they have this right, there will be problems.
BJN: What is the relationship between C&E and RTL?
TWC: Because both are systems that restrict personal liberty, in essence they are the same. It is only the people targeted and the length of the punishment that are different. Furthermore, both are systems that don’t go through the judicial process and instead the administrative agencies unilaterally make the decision. In looking at the legal principles governing C&E, the public security bureaus don’t have a problem; rather the C&E-related legal provision are not in line with the current law. As a result, they must be repealed.
BJN: How likely do you think are the proposals to abolish C&E?
TWC: It will be like RTL which took a long time to repeal; I think repealing C&E will be like that.
Unfortunately, it took the detention of a famous male actor for the Chinese media to criticize an unlawful detention system that has long been used against low-income female sex workers. Last month, actor Huang Haibo (pronounced Hwang Hi-bwo), affectionately known as China’s clean-cut “son-in-law,” was detained after he was found with a prostitute in his upscale Beijing hotel room.
Prostitution is illegal under China’s criminal law (Crim. L. Arts. 358-59), but neither Huang nor the sex worker was formally arrested. Neither was charged with a crime. Neither ever saw the inside of a courtroom. But both received a six-month sentence under China’s “Custody and Education” (“C&E”), another punishment in China’s myriad administrative detention system where the police serve as prosecutor, judge and jury. Under C&E, the police can unilaterally detain sex workers and their clients for anywhere from six months to two years.
C&E continues even though last November, the Chinese government herald its abolishment of another administrative detention punishment: the notorious “Re-education Through Labor” (“RTL”). Now, with the detention of one of China’s most famous actors, the spotlight is on C&E. China’s media, including the state-run media, is calling for its abolishment. But will C&E go to the same way as RTL?
C&E’s Dubious Legal Status
It’s not surprising that C&E, formally in existence since 1991, has not garnered much press prior to the detention of Huang Haibo. It is a punishment that is reserved exclusively for sex workers and their clients and according to Asia Catalyst‘s seminal report on the topic, the punishment has largely fallen upon lower-income women who often have no other career options, not your usual feel-good story that mainstream media prefers.
But the Beijing police diverged from the usual pattern when, on May 15, 2014, it went after Huang Haibo and presumably a high-end
Potential Victim of China’s Custody & Education System (Photo Sim Chi Yin for The New York Times)
prostitute. Immediately following the May 15 detention, the Beijing police – through their Weibo account (China’s version of Twitter) – alerted the world to Huang’s detention. At first, the police gave Huang and his cohort a lighter sentence of 15 days administrative detention under the more generic Public Security Administrative Punishment Law. But on May 30, 2014, the Beijing police unilaterally decided to continue Huang’s detention, sentencing him and his cohort to six months in C&E which falls under the regulation entitled Measures for the Management of C&E Centers (“C&E Management Measures”).
It was that six-month sentence – a much more serious deprivation of liberty than the prior 15 days – that caused popular uproar with various editorials questioning C&E’s legal status. But even prior to the Huang Haibo incident, back in early May, many China human rights lawyers, including Pu Zhiqiang (pronounced Poo Zhir-chee-ang), recently arrested for “creating disturbances and illegally obtaining personal information,” signed a petition calling for C&E’s abolishment stating that under Chinese law, C&E is illegal.
Recent editorials, including an interview with the director of the Criminal Legal Affairs Committee of the All-China Lawyers’ Association, Tian Wenchang (pronounced Tee-an When-chang), have echoed the arguments found in that May petition which received scant attention at the time. Almost every editorial notes the non-transparent nature of C&E. There is no impartial judge that the individual can appeal to; there is no lawyer. Instead, under the C&E Management Measures, the police have complete power to determine if C&E is appropriate and the length of the sentence. While there is an appeal mechanism, the first step is to ask the police to reconsider the sentence (Art. 20). Only after that reconsideration can the individual seek to bring a lawsuit against the state. But without a lawyer, that rarely happens.
An RTL camp in Shijiazhuang, Hebei province. (File photo/CFP)
Similar factors – the unilateral decisions of the police and absolutely no judicial oversight – pushed the public to call for RTL’s abolition. But those due process violations alone were not enough to overturn RTL. Also instrumental was the fact that RTL was not based in law. According to the China’s Legislation Law, the law that sets the basic ground rules on how all other laws and regulations are to be written, “[o]nly national law may be enacted in respect of matters relating to. . . (v) . . . compulsory measures and penalties involving restrictions of personal freedom. . . .” (Art. 8). Thus, only the National People’s Congress (“NPC”) or the NPC’s Standing Committee is entitled to make “national law.” And any attempted to deprive an individual of his or her liberty must be based on laws passed by the NPC or its Standing Committee.
In the case of RTL, the three sets of rules that governed the system – the 1957 Decision, the 1979 Supplemental Decision and the 1982 Trial Rules – were instituted by the State Council and the Ministry of Public Security, not by the NPC or its Standing Committee. As a result, RTL was in violation of legal procedure. Making its abolishment legally necessary.
Similar arguments are being made in regards with to C&E. C&E was first established by the 1991 Measure on the C&E of Prostitutes & Their Clients which was in fact passed by the NPC’s Standing Committee. In that document, the Standing Committee delegated to the State Council the right to draft the C&E Management Measures, the measures which deal with the deprivation of individuals’ liberty. But again, the China’s Legislation Law, this time Article 9, clearly does not permit the NPC or its Standing Committee to delegate the right to draft regulations pertaining to the deprivation of liberty. As a result, the State Council’s 1993 C&E Management Measures are without legal effect, making the whole C&E system in violation of the law.
Will C&E Go the Way of RTL?
There are certainly strong if not convincing legal claims for C&E’s abolition. But one thing to factor in is the amount of money which the
Cha-ching! Women in a Custody & Education Center (Photo from Weibo)
public security bureaus (“PSB”) make off of C&E as highlighted in the Asia Catalyst report. Under C&E, detainees are required to work and although the Management Measures imply that the detainees be paid (Art. 13), they very rarely are. Instead, the income goes to the local PSB’s coffers.
Another source of income: the detainees themselves. Ironically, the Management Measures require that the detainees completely cover the costs of their own detention (Art. 14); RTL did not contain such a provision. As the Asia Catalyst report documents, these costs are substantial and likely inflated – six months in a C&E costs an individual between 5,000 to 10,000 yuan (US $820 to $1,639). Also inflated are the costs of goods. According to the Asia Catalyst interviewees, goods are several times more expensive than on the outside.
With the free labor and the ability to charge detainees for their custody, C&E centers are an important profit center to local PSBs. It’s the local PSB’s profit-motive that will make abolishing C&E more of a challenge. As the Asia Catalyst report points out, local PSBs did not fare so well when China became a market economy and have had to find ways to support themselves. One way is through C&E centers.
Allegedly the woman found with Huang Haibo – a Chinese “any one”?
And on some level, the Chinese government and local PSBs have to recognize that sex workers and their clients do not garner the same level of societal sympathy as those who were getting caught up in RTL. Tang Hui (pronounced Tang Hway), a mother of an 11 year old girl who was raped and sold into prostitution, became the poster-child for the dangers of RTL. After her daughter’s rapists, kidnappers and pimps were given a slight slap on the wrist, Tang protested. But that protest is what landed her in an RTL camp. When she got out, she sued, receiving a tremendous amount of public support and highlighting the dangers of RTL. Similarly, in 2003, when China abolished Custody & Repatriation, another form of administrative detention, the public was aghast that an innocent college student, Sun Zhigang (pronounced Son Zher-gang) could get caught up in such a system and end up dead in police custody.
Tang and Sun were China “any ones” – anyone could be a grieved mother; anyone could be a young
Will public attention to C&E pass once Huang Haibo is freed?
college student. Anyone could have been entrapped by such an unjust system. But here, with C&E, the individuals involved are sex workers, and lower-income, less-educated sex workers. Although C&E has the same abuses as RTL, most Chinese do not fear that they will find themselves entangled in the C&E system. There is a high likelihood that the public spotlight that is currently on C&E will fade once Huang Haibo is freed.
But at the very least the Huang incident has caused the international media to focus on the C&E
system. Supposedly the Chinese Communist Party was intent on repealing RTL because it is an obvious roadblock to its ability to ratify the UN’s Convention on Civil and Political Rights, a treaty which forbids the deprivation of liberty without due process of law and court oversight. But C&E – now that it has been exposed more publicly as a result of the Huang Haibo incident – needs to be abolished before China can ratify that treaty.
The Goddess of Democracy – the symbol of the Tiananmen Square Protests
Twenty-five years ago, on the night of June 3 and into the early morning hours of June 4, 1989, tanks rolled in to the streets of Beijing and the Chinese government did the unthinkable: it opened fire on its own people, killing hundreds if not thousands of unarmed civilians in the streets surrounding Tiananmen Square. That violent crackdown marked the end of seven weeks of student-led, peaceful protests in the Square itself, protests that were supported by much of the rest of Beijing, protests that would amass hundreds of thousands of people a day, protests that people wistfully thought would change China.
Twenty-five years later the students who participated in the protests are no longer fresh-faced, wide-eyed college kids, the workers who supported them are retired, and many of the bicycle rickshaw drivers who ferried dying students to hospitals on that bloody Sunday morning are long gone. Along Chang’An Avenue, glitzy buildings have replaced the blood and bullet holes. Starbucks stand near where students once went on hunger strikes. Tiananmen is different; China is different. But yet there are some things that remain the same.
The government that ordered the crackdown 25 years ago – the Chinese Communist Party (“CCP”) – is still in power and many of the gripes that initiated the student protests – corruption and nepotism among political elites, lack of personal freedoms, and government censorship – have only gotten worse and continue to be the impetuous for activists. And, like the students in 1989, these activists are still willing to risk their lives to promote the values enshrined in the Chinese Constitution and guide China to become a better place for its people.
But make no mistake, while these factors might be the same, there are important aspects of China that have changed. In
Hundreds of thousands of Beijing residents – students, workers, ordinary people – supported the protests.
particular, China’s rise as a global power. Criticizing China for human rights violations and its failure to live up to its own laws is not as easy as it was in 1989 when President George H.W. Bush cut off government ties, military relations, and the sale of U.S. government goods the day after the Chinese government’s crackdown. Imagine denying U.S. businesses the opportunity to sell products to the world’s second largest economy? That would never happen today. And to severe relations with China – would the American public want to so easily give up its cheap Walmart goods or be denied the ability to obtain the newest iPhone? Probably not. The Chinese government understands the soothing and influential comforts of our material desires.
But perhaps the most troublesome change is how the CCP now deals with dissent. If the last few months are any guide, excessive violence continues to be the modus operandi of the CCP. Cao Shunli (pronounced Ts-ow Shoon-lee), an activist who organized small, peaceful protests that called for citizen participation in China’s United Nations human rights review, was detained for “picking quarrels and causing trouble,” was denied medical treatment for months, and died in police custody. Tang Jitian (pronounced Tang Jee tee-an), a disbarred-lawyer-now-activist that sought to assist Falun Gong practitioners, has recounted the physical torture he suffered while in police custody in March. Since coming out of detention with 16 broken ribs, Tang has all but effectively been denied appropriate medical care for his tuberculosis which has gotten significantly worse.
Deaths of many protesters lined the streets surrounding the Square
But the CCP has learned from its mistakes. No longer is its violence against dissent as public as it was the morning of June 4, 1989. And no longer does the CCP come off as a lawless regime. Instead, its cloaks its crackdowns with a veneer of legality. Since April 2014, in preparation for the 25th anniversary of the Tiananmen massacre, the Chinese government has detained – either criminally or through unofficial house arrest – over 84 individuals. But these individuals are not detained under the guise of being counter revolutionaries like the students of the 1989 movement. That would be too obvious. Instead, the Chinese government has slapped the vague and overly broad crime of “picking quarrels and provoking troubles.” After 20 years of Western rule of law programs, the CCP has come to realize that the easiest way to deflect global criticism is to follow legal procedure, no matter how abusive, vague or entrapping that legal procedure might be.
If the 25th anniversary of Tiananmen means anything, China’s new strategy – the use of law to suppress dissent – must be
Everyday rickshaw drivers tried to save many of the students
examined and criticized. China’s activists are being violently detained and imprisoned in record numbers “in accordance with the law.” But that suppression of dissent is no different than what happened in 1989. It is another method of killing the chicken to scare the monkeys – ensuring that the violence against a few “troublemakers” teaches the rest of society not to rock the boat. This time though the rest of the world is increasingly complacent.
As the world marks the 25th anniversary of the Tiananmen Square massacre on Wednesday, China will be the lone nation that will not. Since 1989, its people have been forbidden to commemorate the event; they are not permitted to remember; they are not allowed to note those fateful days that changed their lives more than anything in China’s recent past. And that is why the events that other nations hold in honor of the many brave Chinese people who lost their lives on that night are so important. Because while the Chinese government has found new strategies to more effectively deal with international criticism of its treatment of its people, the one thing that the outside world still has is the truth. But that truth must not be limited to just what happened 25 years ago; it must also be used to call on China today stop its suppression of dissent today. To do otherwise is a disservice the victims of that night.
One of the most iconic photos of the 2oth Century – one man stands up to a line of tanks
Last month the New York Times ran a front page story on the Chinese Communist Party’s investigation of former Minister of Public Security Zhou Yongkang. Rarely if ever have the Party’s investigations reached such senior echelons. Does this signal a new Chinese president intent on holding officials responsible under the law or merely a purge to consolidate his power?
Here in part 3 of this three-part series, Prof. Eva Pils, an associate professor of law at the Chinese University of Hong Kong and research fellow at NYU’s U.S.-Asia Law Institute, answers that question, noting that Xi Jinping’s current anti-corruption campaign is far from a promotion of a rule of law.
Read the transcript below of Part 3 of this three-part interview or click on the media player to listen:
Length: 9:20 minutes
To read or listen to Part 1 of this three-part interview series with Prof. Pils, click here.
To read or listen to Part 2 of this three-part interview series with Prof. Pils, click here.
EL: Going back to the government, I want to finish with one last question about the government and its relations to the rights activists. Recently, in late 2013, early 2014, you’re seeing a lot of rhetoric coming from the Chinese Communist Party calling for things like judicial independence, greater respect for lawyers. I think there are some people in the West who have seen this as a positive development, that it is showing that the government wants incremental legal reform and that there is space for that. But my question to you: given this crackdown that has happened, should we see this rhetoric as anything positive? How should we view it and how should you view the rhetoric that’s happening simultaneously with this very severe crackdown on rights lawyers?
EP: Well maybe answering those questions does require looking at least briefly at some of the reform measures and the changes
Former Minister of Public Security, Zhou Yongkang. Now being investigated by the Party for corruption.
under the new leadership. I think the anti-corruption campaign is probably a good example. Personally I think it would be quite a mistake to see that as a new leadership coming in and trying to essentially provide or establish a basis for further-reaching reforms that ultimately end in this end-goal of the democratization or liberalization narrative which is a stable rule of law system with increasing political openness.
Because if you look at what actually happens in the anti-corruption campaign, I believe it would be really hard to deny that people who do end up being investigated for corruption are really those who have somehow lost protection from within the system. It remains a party decision who will be investigated for corruption. So another way and perhaps a more accurate way of seeing what is going on under this so-called anti-corruption campaign is actually a party purge, a party-internal purge that serves the ultimate goal of strengthening and centralizing control under the central leadership, and centralizing control by Xi Jinping.
So that is really very, very far from construction of the rule of law, which of course would also require some moves against corruption; but those would take the form of the use of the judicial process, an open process and a rule of law-based process. All of that I don’t think we are seeing clearly at all. Just think of the fact that high-ranking officials who are targeted are not processed through the judicial system but, rather, just as they used to be before, they are put under some sort of Party detention [known as shuanggui].
Corruption investigation and trial of another senior Party official, Bo Xilai
I think that tells us a lot about this liberalization narrative that you just brought up. I think it’s a very powerful narrative and has been extremely attractive for essentially anyone who has tried to engage China from the outside, including many foundations, governments, institutions, who have tried to strengthen rule of law development in China over the past decade. I think that from the perspective of these institutions and the individuals working with them, there are very powerful reasons – important reasons – for wanting to see this kind of incremental reform process that you mentioned, and to make constructive contributions to this process without at the same time alienating the authorities.
But for the reasons that I just gave, I don’t think that we see, that we have evidence from the ground that this is what is happening. And of course that means also that this powerful, attractive but then somehow also a little bit anesthetizing narrative of gradual liberalization, just doesn’t work.
In China, amongst academic circles, I think you can see that reflected in a shift of vocabulary away from constant uses of the word ‘reform’ or ‘judicial reform’ – sifa gaige [司法改革]. I think that people are sort of becoming more critical of that idea [of reform] because they just reach a conclusion that it does not seem to be working. They’re actually talking more broadly about ‘change’. I think that what I would take away from that shift is that agency in change – legal-political change – does not necessarily lie with the government. Increasingly the momentum has shifted to civil society, including the human rights movement.
EL: Just one last question. What do you see short-term for the future of human rights advocates in China. Not long term just short term. Do we see it getting worse or do you not even want to try to guess?
EP: Well, I think that yes we do see it for the moment things getting worse. I would be very pleasantly surprised if there was some
Can’t keep a good man down – the movement continues even as activists are arrested
loosening or lightening of the pressure. The events of the past couple of weeks and months have sent very strong signals that it is quite likely that more lawyers will be detained. We are now unfortunately finding that human rights defenders when detained can be exposed to very significant levels of violence. Of course you mentioned the terrible case of the death of Cao Shunli.
I think that what is interesting is that despite all this repression, despite the worsening long-term crackdown, you also have a rise in numbers of human rights lawyers. You have more and more lawyers showing solidarity with human rights lawyers and expressing a willingness to be called human rights lawyers, identifying with this human rights cause. What I also find remarkable is that human rights lawyers are amongst the most optimistic people I speak to when I go to China.
EL: I guess the increase in numbers gives us some hope amongst all this despair. I want to thank you Prof. Pils for your time and for letting us know and trying to figure out what’s happening on the ground in China. Thank you
In Part 1 of this interview series with Prof. Eva Pils, an associate professor of law at the Chinese University of Hong Kong and research fellow at NYU’s U.S.-Asia Law Institute, Prof. Pils described the “weiquan” (rights defense) movement in China. Here in Part 2, Prof. Pils continues by discussing the emergence of one of the most significant and organized aspects of the weiquan movement, the New Citizen Movement. What is it these New Citizens want and what is it that causes the government to violently suppress some of the Movement’s leaders? Prof. Pils answered these questions and more when China Law & Policy sat down with her last month.
Read the transcript below of Part 2 of this three-part interview or click on the media player to listen:
Length: 13:38 minutes
To read or listen to Part 1 of this three-part interview series with Prof. Pils, click here.
EL: So just to get a little bit more specific, I want to turn now to focus on Xu Zhiyong who just received in January four years in
Emblem of the New Citizens Movement – calligraphy of Sun Yatsen
prison. He is a part of this “New Citizen Movement.” Can you describe what that movement is a little bit? Where did it emerge from and what its platform is?
EP: So the New Citizen Movement, it emerged in 2012, around May 2012. I think that it can be seen as in some ways a response to the problems that we have just been discussing, the [social] grievances, and also the problem of repression of civil society. In some ways it is also due to changes that have come about because of new communication technologies – the social media – that have enabled a new form of activism to emerge not only in China but also in other parts of the world. Think of the various Occupy movements and the Arab Spring.
That’s I think one the reasons why the New Citizen Movement emerged. Obviously it focuses on the idea of the citizen. When you look at what Xu Zhiyong in particular has provided as an analysis of citizenship, the concept of the citizen, you can see that it is a very strong, richly normative political conception of the citizen; a sort of 18th-century-Europe notion of the individual who has rights against the state. I think that looking at the history of the human rights movement [in China] that we just discussed, you could perhaps also say that Xu Zhiyong, having tried for ten years to introduce beneficial changes in China through case-by-case legal rights advocacy, comes to the conclusion, around 2011- 2012, that now a new method of advocacy has to be tried; that rights advocacy in a way has to move beyond working on individual cases, and become more issue-focused and more explicitly political.
Teng Biao, organizing without organizations
So how do you do that in the context of a political system that very clearly does not allow a political opposition? Like in other places in the world, the answer that seems to be emerging in China right now, as I see it, is to adopt forms of organization that are significantly different from what we’ve seen before. Teng Biao, another very important scholar and rights advocate, has used Clay Shirky’s idea of organizing without organizations to describe what is going on here. The idea is basically that you could achieve a high degree of coordination and initiate various types of actions, civil society actions, without having a visible traditional organizational structure. It’s also that in a new civil society political movement of this kind, you have to be very open. You have to be the opposite of what characterizes, for instance, the rise of the Chinese Communist Party from its sort of underground years, to this moment when it manages to control power.
An example of that [openness] would be, for instance, these so-called gongmin jucan [公民聚餐], the citizen meals that were organized by the New Citizen Movement. The idea was really that you would somehow get people to distribute information about venue and time and so on online. At some of the gongmin jucan, the new citizens meals that I have observed, it really was possible for people who simply had come across this information online to come along and join the meal. It was entirely open towards anyone who wanted to show up. That’s remarkable in the context of a system that, as you just said a while ago, scrutinizes everybody so much and has so much surveillance. But the idea really was that this sort of openness represented a new form of political power that could be used to initiate some sort of change. Along with that of course goes the idea that the activism of the New Citizen Movement must be non-violent.
EL: Just in terms of numbers, what are we looking at in terms…how big would you estimate the movement is if you can even do that? If you can, if you can.
EP: On the numbers, I have to say I don’t know. Of course we have asked those various questions. There is no very clear answer.
A New Citizen Dinner – From left to right: Guo Feixiong, Yang Zili, Xiao Guozhen, and Xu Zhiyong in a dinner gathering in Beijing. Photo Courtesy of Chinachange.org
Perhaps one could say that in 2013 we had in a number of say in around 30 or so different Chinese cities you had a total of a couple hundred people who were essentially initiating and organizing these meals. And by the way the idea was basically that you had a meal being held at the same time in different locations all over China potentially. So you had a couple hundred people. Perhaps that means a few thousand people who would be willing to show up for one or two or more of those who would be in some way supporting the New Citizens Movement. Perhaps it would be good if we had access to (I have not) the list of people signing the so-called gongmin chengnuo [公民承诺] – the citizens pledge – that was issued in 2010 and was kind of an appeal to citizens from all walks of life to essentially pledge to be a good citizen using this political idea that Xu Zhiyong stands for and others stand for.
Something else that perhaps you could consider would be the level of support that Gongmeng [Open Constitution Initiative], the organization co-founded by Xu Zhiyong, got for its activism for educational rights for migrant worker children. As I recall, at the time it was said that in Beijing they would be able to essentially reach tens of thousands of migrant worker parents. So, certainly they were thinking big. They were thinking that they could reach out to potentially everyone. And if you look at the composition of the citizen meals, it wasn’t just lawyers; it was not just scholars, lawyers, people with legal education or that sort of background. It was also people who were petitioners or people who just took an interest in what was going on there.
Education of migrant children – major political issue in China
EL: You raised the issue of education for migrant children as one of the issues, which would require a change to the hukou system. And some of the other things of the New Citizen Movement advocates like more transparency of Chinese officials and their assets. These are in fact the reforms that in the past year the Chinese government has stated that they are looking to examine or to adopt. So it is seems like the Chinese government is sort of listening to the New Citizen Movement or at least their complaints. But then, how do you mesh that with the fact that they’re arresting the advocates of that movement for disrupting public order. What gives here?
EP: I’m not so sure about that analysis. I think that when you look at what the New Citizen Movement has advocated, yes of course you have some similarities to these reform policies announced by the Chinese government. But, I don’t think that is by itself evidence that the government is following suggestions from the New Citizen Movement. For one thing, these reform ideas were around long before the New Citizen Movement even emerged.
But perhaps more important is that you could also see this the other way around, and this is how it was analyzed by people involved in the various movements that you currently have in China. People were saying that in some ways the New Citizen Movement had chosen to talk about causes that the government had already said it had adopted. That might be a way of coming across as a little bit less provocative than if you do what very clearly and visibly was done in the south of China [in the context of] various movements around Guo Feixiong, another very important right advocate who is based in Guangzhou. What you had there was really the use of much more aspiring and much more abstract political slogans: constitutional government, democracy, human rights — in those words.
So you have this very interesting discussion within these smaller sub-movements if you like, these groups within the human rights movement. Some people were critical of the New Citizen Movement, saying that essentially it was not a good strategy to choose government slogans. I remember one person saying basically that you shouldn’t think that the government is that stupid – those are his words – that ‘[you shouldn’t think that] just because you shout the government slogans they won’t come after you’ — they are not going to let you off just because you shout the identical slogans.
President Xi Jinping of China – listening to the New Citizens?
The reason for that [according to my interlocutor was that] as long as you make political demands of any kind they [the Chinese government] will assume that you want a share of the political power and that’s what the government won’t accept. From that perspective, we were seeing an attempt to be a little bit less provocative by using campaign causes that were similar to the government, but that strategy essentially is not really working. And I think that there is a whole lot more to say about the differences between what the New Citizen Movement, what other movements were calling for, and what the government has so far delivered. For instance, when it comes to anti-corruption and so on.
EL: So you wouldn’t say the government is co-opting the movement?
Since the fall, not a month has gone by where there isn’t some Chinese human rights advocate being prosecuted. The charge is usually the vague and broad claim of “disturbing public order.” Activist Xu Zhiyong (pronounced Sue Zhi young) was given four years in January under that charge, one year shy of the maximum. Cao Shunli (pronounced Ts-ow Shun lee), another human rights, died in police custody while being investigated for the same charge.
EL: Thank you for joining us today Prof. Pils. Let’s start with a little bit of background. These human rights lawyers, who are most frequently referred to as “rights defense” or “rights defending” lawyers, when did they first start to emerge and why?
EP: Thank you. I think that they used to call themselves ‘rights defense – weiquan [维权] lawyers’ – but I think that actually over
Bringing back the law – Deng Xiaoping
the past one or two years, they’ve started preferring the term renquan lushi [人权律师] which means ‘human rights lawyers.’ That’s in a way related to how they emerged. They emerged because in the post-Mao era, especially from the 1990s onward, it became possible to use the law to defend rights, for one thing of course because there [now] was law — it was only under the Deng Xiaoping reform and opening policies that law became an accepted tool of government of the Party-State, after it had been completely denounced in essence as a counter-revolutionary idea in the last decade under Mao Zedong
Then the other thing is that there was a period, [from the beginning of the post-Mao era until] the 1990s when the Party-State authorities were essentially encouraging the use of law to address certain kinds of dispute, certain kinds of conflict in society. During that time, weiquan – rights defense – was actually an officially propagated term. As background, one would have to say that rule by law – yifa zhiguo [依法治国] – was an idea that the authorities were making use of in the Deng Xiaoping era in order to claim political legitimacy. That in a way replaced the political legitimacy coming from the idea of a communist revolution that was what political legitimacy was based on in the Mao Zedong era.
I think that this argument [about law as a tool of governance] is quite right, this is how Deng Xiaoping wanted to develop China in the post-Mao era, but also I think that the authorities, perhaps including Deng Xiaoping, didn’t fully realize what they were letting themselves in for when they promoted the idea of [rule by law and] weiquan. Perhaps this was because they were quite good Marxist-Leninists and believed sincerely that law was nothingother than a tool of governance to be used by the ruling power. Whereas of course, from the weiquan or rights defense perspective, [law] is connected to justice and it’s connected also, potentially at least, to political resistance, to the idea of rights, of human rights. I think that it’s a step toward a more explicitly political agenda that the lawyers who used to be referred to as weiquan lawyers have now chosen to call themselves human rights lawyers.
EL: In terms of the political agenda, the agenda of the human rights lawyers in China, in terms of their issues – is there something that unifies them as a single issue or are there different issues? In general, are they located in one area or do you find them throughout the country.
The Jiansanjiang Four – from L to R: Jiang Tianyong, Zhang Junjie, Wang Cheng & Tang Jitian
EP: I think in terms of area, definitely there is a huge concentration in Beijing and also in a couple of other cities, in particular Guangzhou and of course also Shanghai. But when you look at how they work and where they work, it is very important to see that they really work all across the country. In the Jiansanjiang case you mentioned just before [the interview] you have a couple of human rights lawyers going to this extremely remote location in Heilongjiang with the purpose of freeing, or in any case providing legal support to, a couple of people who are extra-legally detained there. That’s an example of what human rights lawyers do regardless of where they are based.
Is there something that unifies them? My impression in having done so many hundreds of interviews over the past couple of years with, I suppose, a few dozen human rights lawyers, [is that] they are very diverse, they are very different in terms of their personalities, their approach to their work, and in some of their convictions. But there are things that do unite them. I think that for one thing, they see themselves as adopting different methods from what many other lawyers are prepared to do. For instance, they reject the idea of wining and dining the officials concerned in their clients case to get results. In that, they’re not different from a group of lawyers called sikepai [死磕派] lawyers, lawyers who are very uncompromising. But what sets them apart from the sikepai lawyers is that they are willing to take on cases that nobody else will want to touch. I suppose one good example for that is the cases of people who practice Falun Gong. And thirdly, they [human rights lawyers] have recently started identifying more clearly around political ideas. They want democracy.
The more things change, the more they remain the same – 25 years after Tiananmen, still cracking down on dissent
EL: Just in terms of the crackdowns that we are seeing and I think you talk a little bit about this in your previous answer. There has always been a crackdown on dissent in the People’s Republic of China, even in the post-Mao era. You see the 1978 Democracy Wall movement, there is a crackdown. You see the Tiananmen protests of 1989, there is a crackdown. Should we be surprised that the same Chinese Communist Party is looking to crackdown on these rights defense lawyers and activists?
EP: No. No, we should not be surprised. I don’t think that the lawyers are surprised either. And I say this, although I just said that initially, in the 1990s, there was this official promotion of and use of the idea of rights defense. There was, I think, for a couple of years, especially around 2003 when you had the famous Sun Zhigang incident, this notion that perhaps rights defense could mean a bold group of courageous lawyers, legal professionals, and legal academics sympathizing with them, persuading the State to introduce incremental reforms. One of [these reforms], for instance, could have been to introduce some sort of meaningful constitutional adjudication — whichever mechanism one would have used — this would have made a potentially very great contribution towards making constitutional rights guarantees more effective in actual people’s lives and actual legal practice in China.
So, [until around 2003] you had that hope — and of course along with that an expectation — that the State would tolerate weiquan. But actually very early on, from the moment almost when they started being successful, these weiquan lawyers also encountered repression. I think we now understand better than perhaps a couple of years ago, that that was really based in a high-level perception that weiquan presented a political challenge and that consequently, it had to be controlled.
So, what has been happening from about 2004 and especially over the past couple of years, has been a tightening of control, and the use of ways of trying to stop lawyers from engaging in weiquan. I don’t think that anyone I have spoken to has been surprised by what has happened.
EL:So in terms of the tightening of control, you mention that the Sun Zhigang case in 2003 is kind of a high point. But then by
Locked Up for Four Years – Human Rights Lawyer Xu Zhiyong
2009, we see a government crackdown with Gao Zhisheng basically being abducted and being held incommunicado. Also in 2009, you see the disbarment of activist lawyers like Tang Jitian and Liu Wei; you see Xu Zhiyong being investigated. Then in 2011, with the Arab Spring, we see another crackdown. Now, 2013, 2014, we are seeing perhaps the worst treatment of advocates. So you were talking about how some of the responses [to weiquan lawyers] is coming from high-level. I think a lot of people see these different crackdowns as separate incidents, just a knee-jerk reaction by the Chinese Communist Party. But should we see it that way or should we see it as part of a larger trend?
EP: I think that it is based in a decision that as I just said was essentially made in 2004 that they would have to be controlled and I think that basic attitude and policy has remained the same also before and after the recent changes in leadership. So I definitely think this is part of a larger trend, yes. I think that also the situation at the moment is worsening.
EL:I think we can guess what it that the Chinese government is so afraid of. But what precisely is it? Is it the issues themselves or is it another power base that could take away power from the Party? What is it that they are so afraid of?
EP: Well, I think from the perspective of the Chinese authorities, or at least from [the perspective of] that part of the Chinese government that is entrusted with the task of stability preservation – of weiwen[维稳], it’s quite clear (and perhaps it is clearer to them than to lots of people outside and inside China) that the human rights movement of which human rights lawyers are of course an important part, stands for political ideas that challenge the Party’s political existence.
“Social Stability” at all costs
There is a perception also amongst the establishment that the current system isn’t viable unless it’s somehow changed. But I think what leads to this attitude of having to crack down on human rights lawyers is that the establishment, the authorities, are completely reluctant to allow any civil society forces to take control of the changes that need to be introduced. So, yes, there may have to be changes; but certainly we, the Party-State, want to stay in control of changes. Another way of putting the same thing, I suppose, is to say that the tizhinei [体制内]forces, the system, the establishment, can’t accept the idea of accountability to people outside of the system; and in a way, it is not institutionally set up to accept that idea. That of course means that the notion, the idea of political opposition, the idea of a free open political discussion of popular grievances, of the forces of social unrest, of the various contentious issues which you have in Chinese society right now is even less acceptable.
For Tang Jitian (pronounced Tang Jee tee-an), a human rights advocate and disbarred criminal defense lawyer, 2013 should have been a banner year. The new Criminal Procedure law took effect ostensibly providing for greater rights for defendants and their lawyers; the Supreme People’s Court’s new President, Zhou Qiang, highlighted the pressing need for the judiciary to respect criminal defense attorneys; and the Third Plenum of the Party’s Central Committee released its resolution, calling on the Party to “give rein to the important function of lawyers in safeguarding citizens’ and legal persons’ lawful rights and interests.” To cap it all off, in December, the government abolished the much reviled Re-Education Through Labor (“RETL”), an administrative punishment unsupervised by the court system that often resulted in hard labor sentence of up to three years.
But for Tang Jitian, 2013 and the early months of 2014 have proven to be anything but positive. Instead, human rights advocates have experienced one of the worst years since 2008 according to the 2013 Annual Report published by the non-profit Chinese Human Rights Defenders (“CHRD”). Under the leadership of China’s new president, Xi Jinping (pronounced See Gin ping), there have been more than 220 criminal detentions of human rights defenders, as documented by CHRD’s report, a three-fold increase from the previous year. The number of detentions that have not gone through the legal process if even greater.
What makes Xi’s crackdown different – and more ominous – than previous ones is its veneer of legality and its attempt to mask the increased levels of violence.
China’s new president – Xi Jinping
Nothing exemplifies that better than what happened to Tang Jitian in China’s Heilongjiang province this past March.
Whac-A-Mole: RETL is Replaced By Other Administrative Detention
As a human rights attorney, Tang has represented some of China’s most vulnerable, in particular adherents of the spiritual movement Falun Gong. The Chinese government has categorized Falun Gong as a cult not necessarily as a result of any of its practices, but rather as an easy way to target a movement that was able to amass a large number of dedicated followers in a short amount of time. It was Tang’s zealous advocacy of a Falun Gong practitioner that led to his disbarment in 2010.
On some level, one cannot be a human rights lawyer in China without understanding the particular plight of Falun Gong practitioners. And that is why Tang ended up outside of a Jiansanjiang (pronounced Gee-en san jee-ang) detention Center where several Falun Gong practitioners were being detained in a “Legal Education Center.”
Re-Education Through Labor Camp before they were formally abolished
While the Chinese government may have eliminated the RETL system, it did not get rid of all forms of administrative punishment. In its place popped up drug rehabilitation centers to house many of RETL’s drug addicts and legal education centers to deal with RETL’s Falun Gong practitioners as well as citizen petitioners, people the government has deemed “troublemakers.” The ability to detain individuals without proper legal procedures has been too powerful of a tool for a government with an obscene infatuation with “social stability” to give it up so easily. For these detained individuals, it is of little consolation if the prison they find themselves in is called a labor camp or a legal education center. In the end they are still deprived of their liberty without any legal review or access to lawyers and often with little to no contact with their families.
When the Lawyers Become the Victims
It was this discrepancy that Tang and three other human rights lawyers – Jiang Tianyong, Wang Cheng and Zhang Junjie (the Jiansanjiang Four) – sought to bring attention to by trying to serve as attorneys to the Falun Gong practitioners being held at the Jiansanjiang Legal Education Center. However, before the Jiansanjiang Four could lodge formal complaints on behalf of their clients, the police raided their hotel room and detained the four attorneys.
Zhang Junjie would be released five days later; Tang Jitian and Jiang Tianyong were held in detention for 15 days. None ever went
The Jiansanjiang Four – from L to R: Jiang Tianyong, Zhang Junjie, Wang Cheng & Tang Jitian
before a judge but again the law allows for this form of administrative punishment as well. In March 2006, China’s Public Security Administrative Punishment Law (“Admin Punishment Law”) – a law that gives free rein to the police to detain individuals for up to 15 days – went into effect. Under the law, the police essentially serve as prosecutor, judge and jury. Although there is an appeal process, as Joshua Rosenzweig notes, “it’s possible to request that a detention be postponed pending the outcome of such a challenge [appeal], but, again, police have discretion to decide this based on whether they think the individual will continue to be a harm to society. So, basically one has little option but to serve one’s time in jail first and pursue remedies later.”
Each of the Jiansanjiang Four were held under the Admin Punishment Law. Tang and Jiang were given the maximum punishment of 15 days for “using cult activities to endanger society.” It was Tang and Jiang’s attempts to represent Falun Gong practitioners – the very reason for their profession and protected by the Lawyers Law – that was punished.
Under the Veneer of Legality, Increase Levels of Violence
Five to 15 days might not seem like a long time, but for someone being tortured, it is an eternity. While being held by police, each of the Jiansanjiang Four experienced repeated beatings and each needed to go to the hospital upon their release. This is what makes the Admin Punishment Law dangerous – without any supervision or the ability to appeal the sanction, the police have free rein to do what they want with these “troublesome” human rights advocates.
Tang Jitian receiving diagnosis at the hospital AP Photo/Alexander F. Yuan
This type of violence against human rights advocates is becoming increasingly common under President Xi Jinping. While beatings are the most common, denial of services, including food and medical treatment has also become prevalent and at times with dire consequences. Tang Jitian suffers from spinal tuberculosis. According to Boxun, while at a Beijing hospital after his detention, Tang was initially informed that surgery was necessary to avoid paralysis. But a few days later, the head of the hospital visited Tang’s room to inform him that the surgery was not possible at the hospital and suggested that he leave. Tang’s TB, at least the spinal portion, is going untreated.
For Cao Shunli, another human rights advocate who had been criminally detained since September 2013, it was her medical condition mixed with possible beatings that eventually killed her. On March 14, 2014, while still in police custody, Cao died of as a result of her tuberculosis. Her family claims that her TB was left untreated and that she was physically abused in police custody. To this day, Cao’s body has not be release to her family for proper burial.
But while China conducts one of its worst crackdowns on human rights advocates, it is still able to obtain a seat on the United Nations’ Human Rights Council, a body responsible for enforcing many of the international human rights standards which the Chinese government violates with abandon. One wonders how many other human rights advocates must die before the world wakes up.
Today, the Congressional-Executive Commission on China (CECC) added two new witnesses to it’s April 8 hearing on the recent and severe crackdown on China’s rights activists. If Prof. Don Clarke of GW Law School and Dr. Sophie Richardson of Human Rights Watch were not enough of a draw, the CECC just added Jewher Tothi, daughter of recently detained Uyghur scholar and activist Ilham Tothi and human rights lawyer, Teng Biao.
For those not in Washington, D.C., the hearing will also be broadcast live on the CECC’s website.
Hearing: Understanding China’s Crackdown on Rights Activists Date: April 8, 2014 Time: 3:30 – 5 pm Location: 418 Russell Senate Office Building Live webcast can be found by clicking here.
The hearing will also be archived on the CECC’s website.
On Wednesday, the Beijing No. 1 Intermediate Court concluded the trial of Xu Zhiyong on the charge of disrupting public order, a crime that can carry up to 5 years in jail. At the conclusion of the trial, Xu was invited to make a final statement, a right afforded to him by Article 193 of the amended Criminal Procedure Law. According to his attorneys, ten minutes into his closing statement, Xu was shutdown by the judge. According to Article 235 of the Supreme People’s Court Interpretation on the Application of the Criminal Procedure Law, the Court is permitted to stop a closing statement:
“After the chief judge announces the conclusion of courtroom debate, the collegial panel shall ensure the defendant’s full exercise of the right to a final statement.Where the defendant in his final statement repeats his opinions several times, the chief judge may stop it.Where the final statement is contemptuous of the court or public prosecutor, harms others or the common interests of society, or are irrelevant to the case, they shall be stopped.” – translation courtesy of China Law Translate
Fortunately, Xu’s lawyers have released his closing statement in its entirety and Yaxue Cao over at the blog Change China has posted the English translation. The document is an important read in understanding the New Citizens Movement, its principles, and why the Chinese Communist Party (“CCP”) is so afraid:
“While on the face of it, this appears to be an issue of the boundary between a citizen’s right to free speech and public order, what this is, in fact, is the issue of whether or not you recognize a citizen’s constitutional rights.
On a still deeper level, this is actually an issue of fears you all carry within: fear of a public trial, fear of a citizen’s freedom to observe a trial, fear of my name appearing online, and fear of the free society nearly upon us….” – Read the Full Translation Here Courtesy of Change China.
While this drama was unfolding in the courtroom, a separate drama was unfolding outside with various foreign journalists being physically harassed by both Chinese police and plain-clothed thugs likely hired by the Chinese police. All of it caught on camera. Here is Martin Patience of the BBC first harassed by police then by a group of thugs:
And here is Mark Stone of Sky News being manhandled:
Finally, CNN’s David McKenzie pushed into a police van and taken away against his will:
On some level, this is comical. Harassing foreign journalists from filming outside of a courthouse? The police had already cordoned off the perimeter of Beijing’s No. 1 Intermediate Court. These guys were going to get no where near the courthouse in the first place. All they wanted was just a backdrop of the courthouse for their story on the trial of Xu Zhiyong.
But instead, they got a whole other story – how the thug-like police state is willing to go on camera and push around foreign journalists with impunity. Granted, with the Chinese government’s fairly strong control of the internet and its ability to prevent videos from getting through firewall, very few Chinese will see these videos. But the rest of the world will. The rest of the world will witness the mafioso-mentality, with hooded, hidden thugs, carrying out what are likely the orders from a high-level Public Security Bureau (PSB) official. Was the trade-off worth it? I would say no.
But does the CCP care what the rest of the world thinks of it? Is this an arm-flexing exercise of the CCP? That international opinion does not matter to them? Certainly these videos are not ones the Chinese tourist industry wants potential tourists to see, but what about Western businesses? Will they think twice now about betting on China? If the past is to provide an answer, Western businesses will continue to look to China for their profits.
Or does it show a CCP that has jumped the shark? That its grip on power is so feeble that it will go to any lengths, including ordering thugs to harass foreign journalists? In his closing statement, Xu Zhiyong seems to think so – that a free society is nearly upon China. But if history is to serve as any guide, the CCP has an uncanny talent of retaining power even when it looks like it is at its weakest. This June will mark the 25th anniversary of the Tiananmen protests. Twenty-five years later, the Party that ordered the massacre is still in control. And the people’s protests are still the same.
On Facebook
By Email 
Comments (1) 
“Human rights and rule of law conditions in China overall did not improve this past year, and declined in some of the areas covered by this report.” And so begins the Congressional-Executive Commission on China‘s (CECC) 2014 Annual Report, a non-sugarcoated analysis of the dilapidated state of human rights and rule of law in China these days.
Themocracy